Lepsch's defense wants homicide charges thrown out

Published On: May 24 2013 05:50:36 PM CDT   Updated On: May 24 2013 07:21:06 PM CDT

The killing of Paul and A.J. Petras in their May's Photo Shop in downtown La Crosse shook the community last fall.

Now the defense for Jeffrey Lepsch, the man charged with the killings, is asking the court to throw out the case.

Lepsch's defense is asking the case be thrown out because they said important evidence was not preserved by the state.

The defense said without that evidence, it's an unfair case.

Lepsch's attorney's said important surveillance video from the Azara Hookah store across the street was lost because the police didn't get a copy before parts of the video were recorded over.

"The defense is alleging that there was a portion of the video that was not preserved that did exist but was not preserved," said attorney Todd Schroeder with Devanie, Belzer & Schroeder, S.C.  

Schroeder isn't personally involved in the case but said even though investigators were not the ones to record over the video, the defense could still have an argument.

"If there was videotape footage of the store that day, all that should have been preserved. The defense is contending not just the time they alleged the defendant was in the store but that whole day should have been preserved because maybe there's something important after or before," said Schroeder.

The defense is pointing to a witness interview investigators did the day after the homicides as further proof they should have known to secure the surveillance video immediately.

The witness claims he saw someone in the store after 4 p.m., but surveillance video allegedly shows a man believed to be Lepsch leaving the store at about 3 p.m.

Schroeder said the missing footage leaves the court with a couple of different options.

"One remedy could be telling the jury in jury instruction, 'Ladies and gentleman, the police made a mistake in this case. They should have done this, they didn't do it, so you should consider that.' Another remedy might be excluding some other evidence in fairness due to the fact that the defense doesn't have evidence that they can use to potentially rebut that. The extreme case, which is appropriate in certain cases, is to dismiss the entire case," said Schroeder.

La Crosse County District Attorney Tim Gruenke said he cannot comment on the defense's motion for ethical reasons.

He said he will give a written response to the motion in the next couple of weeks.

The motion hearing, where the court will consider the defense's argument is scheduled for June 21.